Copyright Law in 2017: A Look at What Happened in the News

by Keith Kupferschmid – Keith is the CEO of the Copyright Alliance. For more blogs by Keith and the Alliance, click here.

2017 was a tumultuous year – even in the copyright world.

In this three-part series, we’re taking a look at the most significant U.S. copyright moments of 2017 from a few different perspectives: what happened on Capitol Hill, in the courts, and in the headlines.

Changes to the Copyright Office, piracy attacks on major media corporations and trade negotiations put copyright on the front page.

U.S. Copyright Office

Changes to the Copyright Office, piracy attacks on major media corporations and trade negotiations put copyright on the front page.

In 2017, the U.S. Copyright Office continued to publish important copyright policy reports to help shape and modernize U.S. copyright law. The most significant of these were reports on Sections 108 and 1201 of the Copyright Act.

Following a one and a half year public consultation process, the U.S. Copyright Office released its report on Section 1201, concluding that the overall framework of Section 1201 is sound. The Office does not recommend altering the basic framework of Section 1201, but did recommend certain legislative updates, including expanding existing exemptions for security and encryption research and adding new provisions to allow circumvention for other purposes, such as the use of assistive reading technologies and the repair of devices. The report also recommends an amendment to give the Librarian of Congress discretion to authorize third parties to assist the beneficiaries of temporary exemptions granted via the statute’s triennial rulemaking proceeding. In addition, the report identifies changes to the Office’s administration of the rulemaking to streamline the process for renewing previously adopted exemptions.

The Office also issued a Discussion Document to facilitate discussions involving potential statutory updates to Section 108 of the Copyright Act, which provides for certain limitations for libraries and archives for purposes of preservation, replacement, and research. In the Discussion Document, the Copyright Office states its “longstanding belief that Section 108 needs to be updated so that libraries, archives, and museums have a robust, comprehensible, and balanced set of exceptions in order to fulfill their missions. The primary objective of the Discussion Document is to provide a concrete framework for further discussion among stakeholders and Members of Congress.” The document also includes model statutory language that would, among other things, make many changes to the organization and scope of Section 108 as well as the provisions relating to making of preservation, research, and replacement copies.

The most anticipated report by the Copyright Office is still forthcoming. This is the report on Section 512 of the Copyright Act, which relates to the very contentious notice and takedown and safe harbor provisions of the DMCA. For the past two years or so the Copyright Office has been collecting information from stakeholders with the last request for information coming in the first quarter of 2017. Thus, it’s probably safe to assume that we will see this report sometime in 2018.

With legislation to modernize the Copyright Office apparently still far away, the Office chose not to wait and instead to try and do what it could to modernize the Office in areas where legislation was not necessary. Over the course of 2017, the Office issued proposed new or interim rules relating to the group registration of unpublished works, newspapers and secured tests (to name just a few), as well as revising the Compendium to improve the Office’s practices. The Office also took steps to implement a new electronic system to designate and search for agents to receive notifications of claimed infringement under the Digital Millennium Copyright Act.

Piracy Trends

2017 brought three new piracy trends. The newest piracy challenge is something called Kodi. Kodi is an open source media player application that is itself legal. The problem is that these boxes often come “fully loaded” with “impossibly cheap subscriptions to improbably large selections of Movies, TV shows, Live Sports, etc. [that] are not affiliated with the Kodi project.” These “criminal boxes,” as Kodi puts it, are the work of “criminals who profit from piracy.” Several movie studios including Universal, Disney, Twentieth Century Fox, Sony, and Netflix struck back, filing a lawsuit against one of the worst offenders – TickBox TV for “intentional inducement of, and knowing and material contribution to, the widespread infringement of Plaintiffs’ rights,” arguing that “TickBox urges its customers to use [TickBox TV] as a tool for the mass infringement of Plaintiffs’ copyrighted motion pictures and television shows.”

Unfortunately, with each step forward that the music industry takes to reach its fans, there are bad actors one step behind who exploit these new capabilities and harm the industry, individual song writers, composers and performers and — most of all — the music fans. 2017 was no exception, as pirates turned to a new method of illegal copying called stream-ripping. Stream-ripping is a process by which everyday listeners can “rip” a file from a streaming platform and convert it into a downloadable file, and apps that facilitate this process are rapidly growing in popularity. A Music Consumer Insight Report published by the International Federation of the Phonographic Industry found that “stream-ripping is the fastest-growing form of infringement,” surpassing even file-sharing. The study also found that nearly half of millennials age 16 – 24, in countries around the world, engage in stream-ripping from popular platforms like YouTube. The difficulty in combatting this problem is that there are no infringing links or content to pinpoint and eliminate. Instead, stream-ripping targets legitimate copies of music and creates illegal reproductions. One method for dealing with this issue, however, is to target the source. For example, the Recording Industry Association of America (RIAA) sued the website “Youtube-mp3” for copyright infringement based on its stream ripping services.

The last piracy trend I will highlight is hackers ransoming copyrighted content. During the course of the year, hackers threatened to leak hit shows like Netflix’s Orange is the New Black, HBO’s Game of Thrones, ABC’s Steve Harvey’s Funderdome, and others, if the studios did not pay the millions of dollars in ransom that was being demanded by the hackers. When the studios refused to pay the ransom, the hacker leaked the shows. The Department of Justice eventually indicted the man responsible, Behzad Mesri. Mesri is charged with one count of wire fraud, one count of computer hacking, three counts of threatening to impair the confidentiality of information, one count of aggravated identity theft, and one count of interstate transmission of an extortionate communication.

International News

Immediately after taking office, President Trump signed an executive order directing the U.S. Trade Representative to withdraw the United States from the Trans-Pacific Partnership (TPP) and another executive order stating the Administration’s intention to renegotiate the North American Free Trade Agreement (NAFTA). That action was followed in May by a letter from U.S. Trade Representative (USTR) Robert Lighthizer to Congress stating President Trump’s intent to renegotiate the NAFTA, a formal requirement of the 2015 Trade Promotion Authority (TPA) legislation which initiates a 90-day period during which the Administration must consult with Congress before beginning renegotiations. The letter stated the Administration’s intention to “modernize” NAFTA to address digital trade, and to include “new provisions to address intellectual property rights,” among other objectives.

In July, the Office of the USTR released its “Summary of Objectives for the NAFTA Renegotiation.” On intellectual property, the USTR wrote that it wants to “ensure provisions governing intellectual property reflect a standard of protection similar to that found in U.S. law” and also “ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rightsholders have the legal and technological means to control the use of their works.” Later on the year, Ambassador Lighthizer released an updated version of the NAFTA negotiating objectives, which include “provisions governing intellectual property rights that reflect a standard of protection similar to that found in U.S. law, including, but not limited to protections related to trademarks, patents, copyright and related rights (including, as appropriate, exceptions and limitations)” and “rules that limit non-IPR civil liability of online platforms for third party content.” Although it was originally hoped that negotiations could be concluded before the end of the year that goal was not met and negotiations will now continue through 2018.

The USTR also “formally initiated an investigation of China under Section 301 of the Trade Act of 1974…to determine whether acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation are unreasonable or discriminatory and burden or restrict U.S. commerce.” Presumably we will know about the results of this investigation in 2018.

Author: Keith Kupferschmid

Before joining the Copyright Alliance, Keith served as the General Counsel and Senior Vice President for Intellectual Property for the Software & Information Industry Association (SIIA). During his 16 years at SIIA, he represented and advised SIIA member software and content companies on intellectual property (IP) policy, legal and enforcement matters.
He has testified before Congress and various federal and state government agencies on IP issues and also supervised SIIA’s Anti-Piracy Division, including working with federal and state government officials on civil and criminal piracy cases.
Prior to joining SIIA, Keith worked as an IP attorney at the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, IP attorney-advisor at the U.S. Patent and Trademark Office
(PTO), Director of Intellectual Property at the United States Trade Representative, and Policy Planning Advisor at the U.S. Copyright Office.